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INTRODUCTION TO JUDICIAL REVIEWSeánMcParland – LC(NI) Mental Health Legal UnitPILS Stakeholder Forum – Tuesday 4thSeptember 2012
Law Centre (NI) 2012
Aims & Objectives
To briefly discuss the anatomy of a Judicial Review (JR) from start to finishUse an actual JR case as examplePresentation is practically focusedIt is not very technical
JR 45 [2011] NIQB 17
Challenge to a Mental Health Review Tribunal [MHRT] decisionOn ground that MHRT incorrectly construed and applied the material provisions of the Mental Health (Northern Ireland) Order 1986.In particular the statutory test of‘substantial likelihood of serious physical harm’{Art. 77 (1)(B)}
Origins of JR cases
Have a strategy with focus on 2/3 issuesOutreach and Networking with othersTrends can arise out of normal caseworkBe alert to unexpected JR opportunityWait until right case comes along
Funding
Legal AidTrade Union/ Charitable organisationPro – Bono legal teamPILSProtective Costs Order
Getting started..
3 month time limit – but may be ongoing breach.May need to engineer a decision that is capable of JR.Pre-action protocol letterGet a reply from proposed Respondent in correct formGet Counsel involved to advise on merits and draft pleadings
Practice points
It need not be the Applicant who does affidavit if mainly legal issues involved.Make sure the relevant practice directions from Court are complied with and the correct number of documents are lodged and served.Liaise closely with proposed Respondent’s Solicitor. It is Applicant’s responsibility to have paperwork in order, so ensure that their pagination etc. is correct.
Gather evidence
Primarily documents from the parties to the action.Other organisations may have an interest: can becomeintervenor, do an affidavit or simply provide informationJournalists/ MediaPolicy units: need to communicate internallyExpert witnesses: evidence adduced by affidavit. Rarely are witnesses examined in Court.
Leave Hearing
‘ If a quick perusal ofavailable materialdiscloses an arguable case in favour of granting the applicant the relief claimed..[the Court] ought to give him leave to apply for that relief.’IRC –V- National Federation of Self Employed and Small Businesses Ltd. [1982] AC 617 at 643Often the Order 53 statement will be amendedIf granted, applicant serves Notice of Motion within 14 daysMay need to arrange funding for substantial hearing
Substantial Hearing
Organic Process: Things will develop and change as case progresses. New documents may emerge.If the Applicant gets what she wanted mid-stream, the matter may still be worthy of pursuit. Public interest could defeat theSalemprinciple that the issue is now academic.The Decision: the judgment may go beyond what was originally sought. The judge may expound on other issues which may prove useful.
If JR not granted
Only 5% of JR’s are successfulGo through the judgment forensically for areas of challenge.Could be that whilst Applicant lost, the principle is established.Wider Policy concerns may drive need to appealCan appeal to the Court of Appeal (with permission)Could be that room for a factually better case to progress the matter.
Some content of JR45 judgment
Substantial Likelihood is defined as a ‘Real Probability’‘Serious physical harm’: is something more than trivial or minorTribunals cannot seek to validate their written reasons by averring to additional reasoning in subsequentavidavits.If someone expresses themselves to be ‘afraid’, it won’t meet the test. More detail is requiredPeople at risk should be identified
Impact of JR 45
Anecdotal evidence indicates that it has had a positive impact on MHRT decisions.Since March 2011, it has been referred to in 50% of MHRT written reasons that Derry LC(NI) has been involved in.In the same period the percentage of discharges in LC(NI) heard cases increased from 37% to 50%.Healthcare professionals are aware of the case and it informs their decisions at admission stage.

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